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By: Aaron Miller
The Georgia House voted 99-68 in favor of House Bill 112 on February 9th, 2021, sending the bill to the Georgia Senate. The bill, which extends liability protections granted to local businesses under the Georgia COVID-19 Pandemic Business Safety Act an additional year, will now need to pass the Senate as well. Should House Bill 112 pass the Georgia Senate and be signed by Governor Brian Kemp, it would provide liability protections to local businesses against negligence claims alleging infection or exposure to COVID-19 while inside the business until July 14, 2022. A summary of the Act’s provisions was discussed in a prior blog and can be found here.
This is an interesting step taken by the Georgia House, as COVID-19 cases have been on the decline and the number of vaccinated individuals rises each day. There has been significant concern about future litigation involving infection of COVID-19, and while cases have already been filed, it remains to be seen what position the law will inevitably take on them.
If the extension of the Act does not ultimately pass, the viability of negligence claims related to Covid-19 exposure is uncertain. As required by law, in order to be successful on a tort claim, a plaintiff must prove that the defendant had a duty to the plaintiff, that the defendant breached such duty, and that the breach of the duty caused the plaintiff’s damages. In the context of COVID-19, a plaintiff would likely have an uphill battle proving that their infection was the result of any particular business, as the incubation period for COVID-19 can range anywhere from 2-14 days. Additionally, as we are now a year into the pandemic, it is widely known how COVID-19 is spread and that there can be severe health consequences as a result of exposure, and a plaintiff would likely be met with a strong assumption of the risk defense. Businesses may be in a better position to avail themselves of this defense by providing or posting warnings similar to the statutory warnings set forth in the Act.
Regardless if the Act is extended, as it does not provide absolute immunity from COVID-19 claims, businesses open to the public need to take steps to reduce their liability exposure, including complying with local and federal guidance from government agencies like the Centers for Disease Control and Prevention (CDC). There is little doubt that such steps would be a defense to any litigation against a business for COVID-19 exposure.
Litigation involving COVID-19 exposure, despite any immunity passed into law, will be an ever-evolving area of law for the next several years. It remains to be seen how the law will react long term to such litigation. The Georgia legislature, however, is at least attempting to limit some of the uncertainty and the scope of potential liability. Should you have any questions regarding your business’ potential liability exposure, please reach out to the author by email at [email protected].